Answer to a question from a reader

What can I do if my father died without a will and my siblings are living in his house?

The short answer

If there is no surviving spouse, the estate will be inherited by the descendants in equal shares.

The whole question

Dear Athalie

What can I do to gain access to the family home? My father died six months ago without a will, and my siblings currently living in the house are denying me access. The deceased estate was reported to the Master’s office soon after my father died.

The long answer

As your father died intestate (that is, without a will) his estate would be inherited in the following order by blood:

  • Surviving spouse;

  • Descendants.

If there is no surviving spouse, the estate will be inherited by the descendants in equal shares.

Braam Swart from  Braam Swart & Partners in George says when people jointly inherit a property, the resulting co-ownership and the consequences thereof are the same as if the persons had purchased the property together.

If the estate has been reported to the Master’s Office, and it is below R250,000 in value, the Master would issue a letter of Authority to the person nominated in writing by family members. It could be any one of the siblings or someone else that you all trust. The person nominated would have the right and duty to wind up the estate, by making sure all debts were paid and that the heirs inherited what was due to them. The letter of authority is usually issued in about 120 days. 

If the estate is above R250,000 in value, the Master would appoint an Executor in terms of the Administration of Estates Act, who would have to go through a much more complex and lengthy procedure to wind up the estate, see that the debts were paid and that the heirs inherited what was due to them. This could take the Master’s office eight weeks to issue. Again, if there is no will, the family members can nominate an executor. 

So my question is, has this been done? Were you and your siblings able to agree on nominating someone to have the letter of authority or to be the executor? Has the person been appointed?

Very often when a property is inherited by several siblings, it can cause a lot of problems between the siblings. For example, a 2022 article by quotes a Ms Budhram as saying: 

“A house cannot be physically divided and handed over to siblings in equal parts. In an ideal scenario, the siblings will be able to agree on what they would like to have happen to the inherited and co-owned property.

This may include one of the following options:

  • Reside in the property together;

  • Sell the property and split the proceeds;

  • Rent out the property and split the income;

  • Have one of the siblings reside in the property and pay rent to the other siblings.”

Budhram says that if they agree to sell the property, they can ask the executor of the estate to do so before ownership is transferred to them. They will then effectively inherit the proceeds of the property.

In the end, it comes down to the siblings talking, negotiating and agreeing on what should happen to the property. 

The person who is nominated to have the letter of authority or is appointed as the executor, is the person who can most easily call a meeting of the siblings where various options can be discussed. If such a discussion does not lead to an agreement, it is the nominated representative or executor who has the authority to say what kind of solution would be most appropriate and possible. It is that representative who has the authority to resolve the problem of your being denied access to the house by your siblings. 

If all else fails, you could approach the Master’s office for advice:

Master of the High Court helpline:
Tel: 012 315 1207

If you are not assisted by the Master’s Office, you could approach Legal Aid (which is a means-tested organisation) for free legal advice and assistance. 

These are the Legal Aid contact details:

  • Legal Aid Advice Line (Toll-free): 0800 110 110

  • Please-Call-Me number: 079 835 7179

You could also ask The Black Sash, an organisation that gives free paralegal advice, to help you. These are their contact details:

Wishing you the best,

Answered on Feb. 9, 2023, 10:07 a.m.

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Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.